from the STOP-CALLING-ME-CRAZY dept

One of the more remarkable intersections of law enforcement and sexting this year involved the Manassas City (VA) police department and a 17-year-old boy's erect penis.

Briefly: two teens -- a 15-year-old girl and a 17-year-old boy -- exchanged nude photos. Apparently, the boy went further, sending a nude video to the 15-year-old. The parents of the girl brought this to the police, who then sought to charge the 17-year-old with "possession of child pornography and manufacturing child pornography," mainly because the law remains mostly "a ass" when it comes to teens sexting.

In order to secure proof that the penis in the offending video actually belonged to the teen being charged, police obtained a search warrant to manufacture child pornography chemically induce an erection and take a photo of the suspect's erect penis. This bizarre action was prompted by the teen's refusal to plead guilty. And was taken despite the fact that police already had taken photos of his non-erect penis during his post-arrest detainment at the juvenile jail.

Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.'

This, of course, was only one of hundreds of similar reactions, most of which also arrived at the same conclusion: inducing an erection in a teen suspect and taking pictures of it is "crazy." But only one person is being sued (so far) for expressing their opinion of Det. Abbott and his warrant.

The lead detective in a high-profile teen “sexting” case from last summer, in which Prince William County authorities sought to take sexually explicit photos of a 17-year-old teen to compare with the evidence, has filed a defamation lawsuit against the teen’s attorney for making critical comments about the investigation in The Washington Post. [...]

Abbott’s lawsuit claims that Foster’s comment “materially misstates Abbott’s discussions with Foster,” and that claiming such an investigative approach was “crazy” in turn “asserts unfitness to perform the duties of his office or employment, with a direct intention to bring Abbott under scrutiny from the media and from the public.”

Abbott's lawsuit is at least as ridiculous as the police activity that inadvertently prompted it. Foster's lawyers have already filed a response pointing out that the statement is not defamatory and is "constitutionally protected opinion and rhetorical hyperbole."

Even Abbott's own department isn't interested in backing this lawsuit.

Manassas City Police Chief Douglas Keen said Abbott filed the suit independently and did not consult him, and Keen said he had no position on the civil case.

The department, however, still backs the decision to create child porn in order to charge someone else with child porn creation and distribution. A close look at its statement indicates that there's a bit of post-debacle blame-shifting going on, leaving the attorney's office holding the "teen penis photo" bag.

In the sexting case that has recently garnered so much attention, the investigating detective with the Manassas City Police Department was instructed by a member of the Commonwealth’s Attorneys’ Office to obtain a search warrant in order to photograph, for evidentiary purposes, the genitalia of the defendant. Upon consultation with the identification expert, the prosecutor subsequently authorized a second search warrant seeking a photograph of the erect penis of the defendant...

Many have expressed concern at what they believe to be an extreme measure in this type of case. However, when a criminal defendant, adult or juvenile, decides to exercise his or her right to a trial, it is necessary for the prosecution to explore all legal avenues of evidence collection in order to prepare for trial…

What Abbott seems to object to most (beyond being called "crazy") is Foster's insinuation that this erect penis photography session was all his idea.

"This statement implies that Abbott conceived of the idea, that he desired to obtain the photographs, that he would take actual photographs, and that he would personally execute the comparison.”

Just following orders, eh? The old Nuremberg defense. Yeah, that’s persuasive. Of course, it was Abbott’s name on the warrant, and at no time did Abbott say or do anything to suggest he wasn’t all-in on the dick pics. Indeed, until news of this outrage went public, there was always the possibility he could get a medal for his bravery and a photo of his own in the local papers for “hero cop convicts saves society from sexting teen by erect penis comparison.” So proud…

Detective Abbott, if you don’t want the world to think you’re some sick, disgusting pervert, don’t be one.

Finally, the lawsuit notes that Abbott has suffered immensely since the story blew up back in July, listing all of the following:

“intense media and public scrutiny, embarrassment, shame…injury to his reputation as a law enforcement official…hundreds of emails that included pornographic or threatening material…telephone calls threatening death or other actions...” [...] “severe emotional distress…which resulted in counseling with a psychologist and the need for medication.”

Well, I can only imagine what a second wave of coverage centering on Abbott's involvement with the production of photos of teen's erect penis is going to do to him. The media had long since moved on from this story, but Abbott's decision to pursue a shaky defamation suit has just reset the clock.

from the showdown dept

Last week, we noted that Attorney General Eric Holder was hinting that the DOJ was near "a resolution" with reporter James Risen -- the NY Times reporter who the DOJ has been harassing and trying to force to give up sources. In a recent interview, Risen makes the rather compelling case, that this effort by the DOJ was never about actually solving any sort of crime (the DOJ knows who did the leak), but rather about totally discrediting and/or punishing Risen for some of his other investigative reports. If the DOJ can undermine the ability of Risen to protect sources, he loses many sources.

Federal prosecutors obtained 100 blank subpoenas last week for use in the upcoming trial of a CIA officer accused of leaking top-secret information to New York Times reporter James Risen.

The move clears the way for the Justice Department to proceed with a new review of whether Risen should be subpoenaed to testify at the trial of Jeffrey Sterling, the CIA employee accused of disclosing details of a CIA effort to set back Iran's nuclear program.

Some of this is procedural. The DOJ put some new rules in place since the last subpoena, and so there's an argument that in order to review the possibility of a new Risen subpoena, the DOJ basically has to do all the initial legwork, and then the DOJ (and Holder in particular) will "review" under the new rules before determining whether to try this silly process again or to back down. Of course, that seems silly. It seems much more viable to just come out and say that they won't subpoena reporters like this and make that a clear and stated rule. But the DOJ seems unwilling to give up this harassment and intimidation tool.

In the end, it seems likely that Holder will fold, but this game of chicken, putting the threat of jail time on Risen to see who blinks first, is really quite disgraceful by the DOJ. So far, Risen has given no indication he intends to comply -- and has held to the same story all along, that he will not give up his sources under any circumstance. Holder, on the other hand, has promised not to put a reporter doing his job in jail. If both men live up to their word, Holder is the one who needs to blink, and it's pretty stupid to go through this whole charade in the meantime.

from the that's-not-how-this-works dept

A very stupid story broke out over the weekend and got some buzz after some people read way too much into some legal maneuvering. As you may recall, back in April a court ruled that Microsoft had to hand over email data stored in Ireland based on a warrant issued in the US under the (incredibly outdated) Electronic Communications Privacy Act (ECPA). Microsoft, quite reasonably, fought back, pointing out that a warrant only applies within the US and not to foreign countries. The DOJ (and the original judge) claimed that an ECPA warrant isn't really like a warrant at all, but rather a "hybrid warrant/subpoena." But, Microsoft (rightly) points out that this is the DOJ wanting the best of both worlds -- while ignoring the protections of both. Here was the crux of Microsoft's argument:

The Government's interpretation ignores the profound and well established differences between a warrant and a subpoena. A warrant gives the Government the power to seize evidence without notice or affording an opportunity to challenge the seizure in advance. But it requires a specific description (supported by probable cause) of the thing to be seized and the place to be searched and that place must be in the United States. A subpoena duces tecum, on the other hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain types of data with a subpoena or a "court order," but required a warrant to obtain a person's most sensitive and constitutionally protected information -- the contents of emails less than 6 months old.

Unfortunately, as we noted at the end of July, the judge in the case, Loretta Preska, sided with the DOJ.

On Friday, Judge Preska did what was basically a procedural move. When she had made the original ruling, she had put a stay on the ruling, fully expecting Microsoft to appeal. This is fairly standard procedure. When a district court judge knows a ruling is likely to be appealed the judge will frequently "stay" the ruling pending the appeal. The DOJ claimed that this was a procedural error and that the particular order, for a whole host of boring legal reasons, is not an "appealable order" and that the stay is inappropriate for that reason. Everyone involved in the case -- the Judge, Microsoft and the DOJ -- knows that it's going to go to an appeal. There's just a very, very minor debate over the correct legal process to get it to appeal. Judge Preska agreed that the original order probably is not appealable, and thus the stay order makes no sense, since it was only pending the appeal. Thus, to speed things along, she lifted the stay, noting quite clearly that this was to help along the appeal process:

Both parties share the common goal of permitting the Court of Appeals to hear this case as soon as possible. Their disagreement concerns the correct path to that goal. In order words, the parties agree on the destination but the route to get there is the subject of hot dispute.

Basically, this was a very minor move to push things onto the proper legal track to get this case before the appeals court. Because the original order isn't technically appealable, the stay didn't make any sense, so the Judge removed it, with everyone knowing that Microsoft won't hand over the info, leading the Judge to issue a different ruling that can be appealed. I saw the news on Friday and realized it wasn't worth writing about, because it's basically nothing.

However, a few sites appear to have totally misread this into being a big deal. If you don't read carefully, seeing that a judge lifted a stay suggests that Microsoft is being forced to hand over the info. But anyone who actually read any of the details (including the decision and/or the Reuters report that broke the news) should have known that wasn't actually the case. Microsoft then said the most obvious thing in the world: that it wasn't handing over the info, because it hasn't done that all along and this is what it needs to do to get the case to appeal. But a bunch of sites misread the whole thing as if Microsoft was somehow taking a new stand, rather than just procedurally moving things forward. A site called WindowsITPro wrote up that Microsoft was now "defying" a court order and this somehow proved it was a heroic company, fighting for its customers:

Despite a federal court order directing Microsoft to turn overseas-held email data to federal authorities, the software giant said Friday it will continue to withhold that information as it waits for the case to wind through the appeals process. The judge has now ordered both Microsoft and federal prosecutors to advise her how to proceed by next Friday, September 5.

Let there be no doubt that Microsoft's actions in this controversial case are customer-centric. The firm isn't just standing up to the US government on moral principles. It's now defying a federal court order.

They did this, even though in the very next paragraph the Microsoft statement itself points out that this is nothing more than a procedural issue. Unfortunately, sites like Slashdot also picked up on the WindowsITPro story and repeated the misleading headline.

Yes, Microsoft is trying to protect its customers' email data (held in Ireland) in this case. And yes, it's an important case. But Microsoft (and a variety of other tech companies that filed amicus briefs in support of Microsoft's position) took that stand months ago. What happened on Friday was a minor procedural effort to move the case along, and didn't represent any big new "heroic" move by Microsoft to "defy" a court order. Nothing to see here, move on. The appeals court is where this case will actually get interesting.

from the because-you-can't-know-how-low-you'll-sink-until-you-try dept

Late last month, some audacious pranksters (or possibly ultra-dangerous individuals) snuck to the top of the Brooklyn Bridge's two towers and replaced the American flags with the universal symbol for surrender: white flags. Or to be more specific, bleached-white American flags.

If you can't read/see the tweet, it's sent from @BicycleLobby and says the following:

Earlier today we hoisted two white flags to signal our complete surrender of the Brooklyn Bridge bicycle path to pedestrians.

The New York Daily News fell for it. More surprisingly, the Associated Press did as well, infecting an untold number of local outlets with its automated breaking news feed. In their hurry to be proven fools, the Daily News and the AP ignored both a) EVERY TWEET EVER MADE BY THE ACCOUNT and b) the second line of the account's profile.

An all-powerful enterprise. Parody account.

The parody account heaped more scorn on the two news agencies, suggesting they google "Dorothy Rabinowitz," the inspiration for the account. Rabinowitz, a Wall Street Journal editorial board member, once famously said, "The bike lobby is an all-powerful enterprise," as she attempted to protect average New Yorkers from the two-wheeled menace that was "begriming" upscale neighborhoods with "blazing blue Citi Bank bikes."

Manhattan District Attorney Cyrus Vance’s office has issued a subpoena for information about the Twitter account @BicycleLobby.

The anonymous, satirical account announced Friday that the company Twitter had received a summons to appear before a grand jury against John Doe defendant in a criminal investigation.

“On Monday, Twitter alerted this account that it had received a subpoena from the office of the District Attorney of the County of New York,” the account tweeted Friday afternoon — clarifying that it was being “100%” serious about the legal notice.

Any and all records including but not limited to account opening documents, user Contact information (subscriber information, including email addresses, billing information, associated telephone numbers), Group Contact information, and all available IP logs for the Twitter account(s) associated with the following…

If Twitter fails to do so, it may be facing "imprisonment for one year." The subpoena also warns Twitter against notifying the end user:

Pursuant to 18 USC § 2705(b), this Court orders Twitter not to notify or otherwise disclose the existence or execution of this subpoena/order to any associated user/accountholder, until the conclusion of this investigation or otherwise by court order.

If Twitter didn't just shrug this off, then it's likely the investigation has concluded or the court has rescinded its order. The subpoena went out on July 23rd and the account holder was notified August 4th. The person behind the parody account has retained legal assistance, not that he or she should actually need it. The NYPD's investigative "technique" apparently consists of grabbing as much data as possible (surveillance, cell tower dumps, "DNA," parody Twitter accounts) and running it through some sort of angsty, terrorism-fueled centrifuge until either a) discretionary spending is increased for counterterrorism units or b) the actual culprit outs him or herself by walking into the police station, dripping with blood flag bleach and shouting "DETECTIVE!" until someone starts paying attention.

Cops were similarly stumped, although they hoped some answers might come from the quintet caught on blurry video crossing the bridge about 20 minutes before the tower lights went out and the flags were stolen around 3:30 a.m…

The graveyard-shift cops who missed the trespassers jumping a locked gate, scaling the two towers and hanging the bleached flags will not be disciplined, police sources told The News.

The answer, of course, is to add more cameras to the exact spot where something has already happened. Someone "inside the police department" posited that it could have been a dry run for a terrorist attack, and the response has been a lot of barn-door kicking and the hassling of any other person who might cross the Brooklyn Bridge on foot during the early hours of the morning.

This clumsy fear-driven thinking is only exacerbated by willing accomplices like the NY Daily News -- the same entity so quick to claim a parody Twitter account did it -- which rushed out this reductio ad absurdum headline the next morning:

That's how the NYPD ends up throwing more cameras at the same spot the previous cameras captured the flag-switchers at work, as though more unwatched eyes will somehow prevent an attack. And that's how a local judge signs off on a subpoena ordering Twitter to hand over user data on a clearly parodic Twitter account -- one that has also claimed to have faked the moon landing. If our main "weapon" in the War on Terror is "swift and disproportionate" reaction, no wonder everyone in the intel community believes we're "losing."

from the say-what-now? dept

A NY judge has ruled against Microsoft in a rather important case concerning the powers of the Justice Department to go fishing for information in other countries -- and what it means for privacy laws in those countries. As you may recall, back in April, we wrote about a magistrate judge first ruling that the DOJ could issue a warrant demanding email data that Microsoft held overseas, on servers in Dublin, Ireland. Microsoft challenged that, pointing out that you can't issue a warrant in another country. However, the magistrate judge said that this "warrant" wasn't really a "warrant" but a "hybrid warrant/subpoena." That is when the DOJ wanted it to be like a warrant, it was. When it wanted it to be like a subpoena, it was.

Microsoft fought back, noting that the distinction between a warrant and a subpoena is a rather important one. And you can't just say "hey, sure that's a warrant, but we'll pretend it's a subpoena." As Microsoft noted:

This interpretation not only blatantly rewrites the statute, it reads out of the Fourth Amendment the bedrock requirement that the Government must specify the place to be searched with particularity, effectively amending the Constitution for searches of communications held digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border criminal investigations. If this is what Congress intended, it would have made its intent clear in the statute. But the language and the logic of the statute, as well as its legislative history, show that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that warrants may not be issued to obtain evidence located in the territory of another sovereign nation.

The Government's interpretation ignores the profound and well established differences between a warrant and a subpoena. A warrant gives the Government the power to seize evidence without notice or affording an opportunity to challenge the seizure in advance. But it requires a specific description (supported by probable cause) of the thing to be seized and the place to be searched and that place must be in the United States. A subpoena duces tecum, on the other hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain types of data with a subpoena or a "court order," but required a warrant to obtain a person's most sensitive and constitutionally protected information -- the contents of emails less than 6 months old.

The DOJ hit back earlier this month by basically saying, "yeah, whatever, let's pretend it's a subpoena and give us what we want already."

Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.

Unfortunately, it appears that the judge just went with the DOJ's reasoning -- though, immediately stayed the ruling since Microsoft made it clear it plans to appeal. Judge Loretta Preska basically just upheld the magistrate judge's ruling that Microsoft could, in fact, be compelled to hand over data held overseas via a warrant under ECPA, the Electronic Communications and Privacy Act (which we've already noted has tremendous problems and needs to be reformed).

Beyond the problems this has for the 4th Amendment in the US, it's also going to create a mess in Europe, where they have much stricter data privacy rules, and where something like ECPA is clearly a problem. For the US to argue that it can make ECPA reach across the ocean into European servers is going to be a big problem -- especially at a time when Europeans are (rightfully) distrustful of the US government's ability to snoop on their data.

from the free-speech-bullies dept

Earlier this month, David Kravets over at Ars Technica, wrote about a questionable order from Judge Marsha Pechman, allowing nutritional supplement firm Ubervita to issue a subpoena to identify a bunch of negative reviewers on Amazon and Craigslist. The order was not only premature, but incredibly broad:

We were concerned, however, because the early discovery had been authorized even though the motion was exceptionally bareboned, without any showing of legal and evidentiary merit, as required by the Dendrite rule, and because Ubervita’s moving papers, and Judge Pechman’s early discovery order, had been maddeningly unspecific about which critical comments were the subject of Ubervita’s claims of product disparagement and unfair competition. The complaint itself cited a couple of adverse comments but went on to allege that there were many other criticisms, unspecified, whose authors were Doe defendants. This unspecificity violated the prong of the Dendrite test that requires the precise actionable words to be spelled out.

Even more troubling was the fact that Ubervita was using the ruling to intimidate any new negative reviewers, posting comments in response to negative reviews, claiming that the reviews were libelous, that it had already filed a lawsuit about other commenters and that the court had allowed the names to be subpoenaed. One comment notes:

On July 2nd, 2014, we filed suit in Federal Court in Washington State to subpoena various websites for the identities of our attackers. The attacks have gone far beyond these anonymous bad-mouthings and 1-star reviews. While we won't elaborate on that issue here, you can Google it or search the Justia.com legal search engine website to see it. It was just filed today, so it may take a few days to propagate those search engines.

To our attackers: you should probably stop before you get into a lot of legal trouble.

As Levy notes, this use of the broad order to intimidate other commenters is quite problematic:

Even worse, Ubervita had started invoking Judge Pechman’s decision to post responses to critical comments, including comments made AFTER the lawsuit was filed which therefore could not have been alleged in the lawsuit to be false and defamatory, warning that Ubervita was suing its critics and inviting commenters to conduct a Google search to learn about the case – presumably, directing them to the Ars Technica article that warned of the supposed “unmasking” order. (I have linked above to PDF's of the threatening comments, not to the comments on Amazon's site, because Amazon has been removing them).

Once Levy contacted Ubervita's lawyer, Mike Atkins, the company promised to limit the subpoena being sent to Amazon to just trying to target those that the company believes are really from an Ubervita competitor. Still, Levy is reasonably troubled both by the court order and the ability of Ubervita to use such a ruling to stifle critical speech.

I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon; in my own mind I remain uncertain on whether he deliberately sought an overbroad order. It is apparent from his client's to use the early discovery order to bully its online critics, however, that Ubervita itself has the evil intent of suppressing all criticism.

Not only does it deserve condemnation for this conduct; you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.

from the because-we're-the-us-gov't-dammit dept

Last month, we wrote about Microsoft challenging the DOJ's attempt to use the outdated Electronic Communications Privacy Act (ECPA) to go fishing for emails held overseas. As Microsoft rightly noted, a warrant does not apply overseas. A magistrate judge tried to dance around this, saying that a warrant under ECPA is really kinda like a subpoena. But Microsoft points out how insane that is:

This interpretation not only blatantly rewrites the statute, it reads out of the Fourth Amendment the bedrock requirement that the Government must specify the place to be searched with particularity, effectively amending the Constitution for searches of communications held digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border criminal investigations. If this is what Congress intended, it would have made its intent clear in the statute. But the language and the logic of the statute, as well as its legislative history, show that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that warrants may not be issued to obtain evidence located in the territory of another sovereign nation.

Overseas records must be disclosed domestically when a valid subpoena, order, or warrant compels their production. The disclosure of records under such circumstances has never been considered tantamount to a physical search under Fourth Amendment principles, and Microsoft is mistaken to argue that the SCA provides for an overseas search here. As there is no overseas search or seizure, Microsoft’s reliance on principles of extra-territoriality and comity falls wide of the mark.

A bunch of tech and telco companies have all jumped into the case on Microsoft's side as well, noting that the DOJ's argument would almost certainly violate data privacy laws in other countries, not to mention piss off governments around the globe. The crux of the argument, as per usual with the DOJ, is that when it wants data, it will twist and twist and twist the laws to enable it to get access to as much data as possible, with as little scrutiny as possible. This is just one of many reasons why we need serious ECPA reform -- such that it actually respects the 4th Amendment. But, in this case, it would be nice to have a judge realize that even under such an outdated law, the DOJ's interpretation is simply out of line.

from the bad-decision dept

A few weeks ago, we wrote about how Malibu Media was up to its old tricks again, demanding six strikes data from Comcast as part of its evidence gathering for its copyright trolling. Apparently, no one fought the request, so a magistrate judge has granted Malibu Media's request and told Comcast to comply with the forthcoming subpoena. When the six strikes plan was first put into place, many people worried that the information from it would be used in lawsuits, but people hadn't realized that it might also get abused by copyright trolls. All the more reason to question whether or not such a program is a good idea. When you have a system that allows "strikes" to be issued with no due process at all, which can then be used by a company currently responsible for 40% of all copyright lawsuits -- nearly all of which they're really using to shake down settlement fees -- it should make you wonder if the six strikes program is really such a good idea.

Here's a link to the photo which kicked off the unlikely chain of events. It depicts two green-clad people, presumably of consenting age, expressing their love in a physical manner. Needless to say, probably, very definitely NSFW.

Redditor un1cornbl00d received notice from Reddit that the Delaware DOJ had served a subpoena demanding the platform turn over his personal information, along with "all posts, responses and their content" related to the original submission. (Found here, with comments now deleted).

The good news is that Reddit's privacy policy (which states that it will inform users that their information has been requested unless prohibited by a court order) trumps the ridiculous phrase the state DOJ deploys in all caps mid-subpoena.

*DO NOT NOTIFY CUSTOMER*

PLEASE DO NOT DISCLOSE OR NOTIFY THE USER OF THE ISSUANCE OF THIS SUBPOENA. DISCLOSURE TO THE USER COULD IMPEDE AN INVESTIGATION OR OBSTRUCT JUSTICE.

Well, if you seriously believe an investigation might be "impeded" or "obstructed," you might want to put with more legal weight than a caps lock key behind it. Most court orders don't say "please," and most court orders point out the legal reasons for the demand. This subpoena tries to demand compliance with shouty typing.

Apparently, this is the way things are done at Joe Biden Jr.'s office. Another subpoena sent late last year demanding that Facebook turn over information on the "owner" of a small (~300 likes at the time subpoena was issued) page with an anti-government slant contained similar all-caps demands for keeping everything a secret… which was also ignored.

*SUBSCRIBER IS NOT TO BE NOTIFIED OR MADE AWARE OF THIS INVESTIGATION*

So, why would a "special investigator" at the state DA's office be interested in a tossed-off comment on a photo of two people having sex out in the open? Well, as far as anyone can theorize, whoever's monitoring social media for the Delaware DOJ (or the entities that feed into it) must have thought unic0rnbl00d was the rarest of creatures on the internet: someone who only tells the truth, and if so, was hoping to bust his "sister" (and possibly Joe Random Stranger as well). Quotes from police "investigating" the sex that two (probably inebriated) people momentarily enjoyed confirm that the force was indeed looking to slap these two with some sort of charge. (Link contains photo -- NSFW)

[T]he police are investigating the pair on suspicion of lewd conduct. A Newark Police spokesman said the couple was "engaging in sexual intercourse in public in plain view of numerous passersby."

Why the hell the state is so interested in punishing people for consensual acts performed in the past is beyond me, other than that pervasive belief that the word "justice" means no one getting away with anything ever. I would think whatever nearly-nonexistent tarnishing of state pride would pale in comparison to the state now being viewed as overreaching busybodies after sending subpoenas to track down an internet commenter and targeting people engaged in First Amendment activities. The latter subpoena is vastly more concerning, as it shows the state attempting to sniff out people with anti-government sentiments. Sure, the page may contain the word "riot," but the full title of the group is "Peaceful Rioters For Wilmington, Delaware."

Again, these may not be signs of active social media monitoring, but this sort of behavior certainly doesn't reflect well on those in the Delaware law enforcement community. I can only assume the state has run out of real crime or other pressing issues and is now just creating busywork for its special investigators.

from the going-to-be-an-important-fight dept

Back in April, we wrote about a magistrate judge ruling that Microsoft had to comply with a warrant asking for data that was held on servers in Dublin. Microsoft argued, quite reasonably, that a US warrant doesn't apply outside of the US. Unfortunately, magistrate judge James Francis disagreed, saying that while it's true that traditional warrants only apply inside the US, this is different because it's "digital." He argued that because the issue was about information, rather than physical property, it could be considered more like a subpoena than a warrant. As we noted, Microsoft made it clear that it would challenge this ruling, and now it has done so, arguing that the ruling flies in the face of the law and the Constitution. This summary from Microsoft's filing is pretty clear on what an incredibly big deal this is, with the government basically seeking to get the best of a subpoena and a warrant without any of the protections and limits required of either:

The Magistrate Judge issued a warrant under the Electronic Communications Privacy Act ("ECPA")
that on its face, purports to authorize the Government to search any and all of Microsoft's facilities worldwide. Microsoft moved to vacate the warrant because the private email
communications the Government seeks are located in a Microsoft facility in Dublin, Ireland and
because Congress has not authorized the issuance of warrants that reach outside U.S. territory.
The Government cannot seek and a court cannot issue a warrant allowing federal agents to break
down the doors of Microsoft's Dublin facility. Likewise, the Government cannot conscript Microsoft to do what it has no authority itself to do -- i.e., execute a warranted search abroad. To
end-run these points. the Government argues, and the Magistrate Judge held, that the warrant required by ECPA is not a "warrant" at all. They assert that Congress did not mean "warrant"
when using that term, but instead meant some previously unheard of "hybrid" between a warrant
and subpoena duces tecum. The Government takes the extraordinary position that by merely
serving such a warrant on any U.S.-based email provider, it has the right to obtain the private
emails of any subscriber, no matter where in the world the data may be located. and without the
knowledge or consent of the subscriber or the relevant foreign government where the data is
stored.

This interpretation not only blatantly rewrites the statute, it reads out of the Fourth
Amendment the bedrock requirement that the Government must specify the place to be searched
with particularity, effectively amending the Constitution for searches of communications held
digitally. It would also authorize the Government (including state and local governments) to violate the territorial integrity of sovereign nations and circumvent the commitments made by the United States in mutual legal assistance treaties expressly designed to facilitate cross-border
criminal investigations. If this is what Congress intended, it would have made its intent clear in
the statute. But the language and the logic of the statute, as well as its legislative history, show
that Congress used the word "warrant" in ECPA to mean "warrant," and not some super-powerful "hybrid subpoena." And Congress used the term "warrant" expecting that the Government would be bound by all the inherent limitations of warrants, including the limitation that
warrants may not be issued to obtain evidence located in the territory of another sovereign nation.

The Government's interpretation ignores the profound and well established differences
between a warrant and a subpoena. A warrant gives the Government the power to seize evidence
without notice or affording an opportunity to challenge the seizure in advance. But it requires a
specific description (supported by probable cause) of the thing to be seized and the place to be
searched and that place must be in the United States. A subpoena duces tecum, on the other
hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government
wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. In fact, Congress recognized the basic distinction
between a warrant and a subpoena in ECPA when it authorized the Government to obtain certain
types of data with a subpoena or a "court order," but required a warrant to obtain a person's most
sensitive and constitutionally protected information -- the contents of emails less than 6 months
old.

Verizon has stepped in as well, pointing out that if the original ruling is allowed to stand, it could have significant negative impact on the ability of US businesses to get non-US users to trust them -- an increasingly important issue in light of the Snowden revelations.

The magistrate’s ruling, if left standing, could cost U.S. businesses billions of dollars in lost
revenue, undermine international agreements and understandings, and prompt foreign
governments to retaliate by forcing foreign affiliates of American companies to turn over the
content of customer data stored in the United States.

The recent revelations about U.S. intelligence practices have heightened foreign
sensitivities about the U.S. government’s access to data abroad, generated distrust of U.S.
companies by foreign officials and customers, and led to calls to cease doing business with U.S.
communications and cloud service providers. Studies have estimated that this distrust will result
in tens of billions of dollars in lost business over the next few years. The magistrate’s ruling, if
left standing, will dramatically increase the harm to American businesses. It would mean that
foreign customers’ communications and other stored data would be available to hundreds or
thousands of federal, state, and local law enforcement agencies, regardless of the laws of the
countries where the data is held. Foreign customers will respond by moving their business to
foreign companies without a presence in the United States.

If you hadn't figured it out by now, this case is going to have tremendously important ramifications for privacy around the globe.